Professional Immunity

Some parties against the institution of tort reform argue that fully or partially immunizing physicians from liability will encourage them to practice sloppy medicine.

I’m not aware of any studies on whether adverse outcomes increase in states where physicians have greater immunity for their actions, but intuitively, I don’t think the argument holds water. Do physicians who work in free clinics and who provide free care to indigent patients in exchange for immunity from liability routinely maim and neglect the patients they treat? Do physicians who work in both fee for service and charitable environments practice medicine in a Jekyll and Hyde manner? Doesn’t make sense without some data to back it up.

However, if we’re going to make the argument that immunity encourages bad professional practices, we need to make the argument on both sides of the professional coin.

If judges were not immune from lawsuits, would things like this still happen during trials?

47 Responses to “Professional Immunity”

I have few doubts that physicians and others who donate time to MSF/Doctors Without Borders, Smile Train, Lions/Rotary/similar organizations outside the US need immunity. The people they help are not likely to sue (unless it’s something like the travesty of the Pfizer Trovan trial in Nigeria).

Immunity might be needed in the US, simply because our culture has absolved itself of personal responsibility and the ability to accept a suitable although less-than-perfect outcome, and lawyers up as a result.

Actually, as even a cursory review of the studies that are out there will show you, tort filings are down over the last decade. What’s more, juries actually have quite a high tolerance for less than perfect outcomes. Although the tort reform lobby, which of course is quite well financed by the tobacco industry, has evidently worked its magic on you. You have to admire the fact that despite all available evidence, people still believe things like your last paragraph.

Why in the world is it good policy to immunize people from negligence, regardless of whether the care is free? Do you not need to pay for the harm caused by your negligence simply because the other person is poor? Can we apply that to all walks of life? If I hit a guy in my car who makes under $15,000 a year, can I get immunity?

We have a great example of what happens when physicians are free to practice with professional immunity here in the states with our VA system.

I’ve picked the brain of numerous physicians who have forsaken the higher earning potential of private medicine for the VA system and its greater professional autonomy. Not one regretted their decision, and several of them argued that their greater freedom actually allowed them to be bigger advocates for their patients.

A family doctor friend delivers a lady, who suffers a post-partum fever. He prescribes antibiotics, tells her to return in a week. She dies. Her two brothers step out of a pickup truck with baseball bats at the doctor’s home. My friend tells them what he did, and that their sister never showed up for her follow up appointment. They apologize, and leave. The lady’s husband later shows up at the emergency room with multiple broken bones. He never filled the prescription for antibiotics, nor did he bring his wife back for her appointment.

This happens in a section of the country with very low rates of medical malpractice claims.

The analogy to judges continues to fail, for obvious reasons. Judges decide questions of law, not fact. And those decisions are appealable.

How is that analogous to physician negligence in their duty to the patients? And are you really using one story to make your case? Because there are literally hundreds of truly heinous malpractice stories resulting in people losing their lives or living with painful conditions. Probably not the best route for you.

“Doesn’t make sense without some data to back it up.”

Likewise, it doesn’t make sense to believe that tort reform will reduce health care costs, bring in more physicians to an area, etc. without some data to back it up. However, that doesn’t slow physicians down.

It’s truly amazing that with a wholesale takeover by the federal government of American medicine that Whitecoat continues to make post after post on tort reform, when 3 decades of it show little discernible effect on the working conditions of physicians, the cost of healthcare, or the number of physicians per capita. Yet let Obama propose to literally nationalize our system, and you get. . . . crickets! Are physicians truly this politically foolish?

“However, if we’re going to make the argument that immunity encourages bad professional practices, we need to make the argument on both sides of the professional coin.”

Wouldn’t the argument be better directed at professionals whose duties are truly analogous to those of physicians? Like practicing lawyers, architects, engineers, all of who have a particularly duty to their client, and none of whom have the myriad liability protections that doctors do? It would seem compared to similarly situated professionals that physicians already have a leg up.

A judge does not have a duty to one party like those professionals do. The better analogy to a judge would be those physicians who sit on your medical review board or licensing board, or whatever your state calls those who decide who should get their licenses suspended/revoked. Are they liable for negligence to the physician if they suspend them and that decision is overturned?

Lawyers, architects, and engineers do not have practices analogous to physicians. None of those three are required to potentially make snap life or death decisions in a vacuum. Architects and engineers generally work with a team of other professionals and there is a great deal of checking each others work. I reckon even lawyers are not required to make such decisions.

Physicians, especially ED physicians, deserve a healthy amount of legal protection. Not perfect immunity, mind you, but there should be a greater standard of evidence for malpractice, something that discourages lawsuits that are filed by persons who are unhappy that life isn’t fair, and lawyers who have no issue with wasting others time and money.

The standard of care, which is set by physicians, already takes those things into account. And most state already have loser pays. And the person who Is spending the greatest amount of money and has the least incentive for delay is the plaintiffs lawyer.

You should probably learn a little more about it before you settle on any “solutions” to problems which may or may not exist.

You say you disagree with that statement and then your next sentence agrees with it. The expert you don’t agree with is still a physician, just as when you started shopping for an expert who agreed with you in your case they were all physicians.

Now, anyone who has tried cases knows that if someone is way out there, the defense attorney is not a potted plant and will expose that. Are there physicians who testify for plaintiffs quite a bit? Of course. There are ones who testify for the defense quite a bit. But we all know that there is a pretty big wall of silence of physicians who will not help a plaintiff know matter how egregious the malpractice.

Again, it comes back to physicians. If they want to establish standards of care, they can.

“Plaintiffs attorneys have a large incentive to pursue frivolous cases when those cases involve large potential damages. Even a 10% shot at a $10 million “bad baby” verdict (which would net the attorney $4 million plus) would be considered a good gamble for some. ”

This statement is what you get when you start dabbling in the economics of other industries you don’t practice in. Do you have any concept of how rare a $10M verdict is? Do you have any concept of the expense involved in a case with those kind of damages? Obviously not. Your statement is akin to those people who say “Physicians just do X or Y so they can make another dollar, that’s what is driving our healthcare cost up.”

“If a hospital is nervous enough about the potential for a huge verdict, it may settle the case rather than risk submitting the case to jurors who might choose a verdict simply on the basis of sympathy.”

You know, you’d think that physicians, who deal with insurance companies regularly, would know that they don’t let go of money easy. Especially large sums. Where does this idea come from? Clearly not any actual experience. Please, tell me which insurers routinely roll over on questionable cases? For that matter, tell me the insurers that write 8 figure checks on good cases without making the plaintiff do lots of work. If you’re making this claim, surely you know.

And where are all these juries who are made up solely of these people who get overwhelmed with emotion anytime a lawyer speaks? And somehow only when the plaintiff’s lawyer speaks?

“And where are all these juries who are made up solely of these people who get overwhelmed with emotion anytime a lawyer speaks? And somehow only when the plaintiff’s lawyer speaks?”

I see plenty. OBs deal with this sort of thing all the time. Take a diagnosis like cerebral palsy. Most data now indicates that CP does not result from intrapartum care, yet OBs are sued quite frequently over this outcome. Same thing with shoulder dystocia resulting in nerve damage. Frequently the child is brought into the court room and paraded around. It’s heartbreaking. The fact is that a certain percentage of normal deliveries will have this result, and no physician or health care provider is at fault.

Would you say that our disagreement revolves around the definition of negligence? Few would argue that bad physicians who are truly negligent shouldn’t be sued. However, what upsets me (and physicians in general), is that you can follow the standard of care and the outcome can still be bad. Sometimes, shit happens, and it’s not always someone’s fault, but someone is always willing to point the finger at the physicians. Moreover, there’s always someone who would do something differently and multiple ways of approaching a problem. Maybe that expert physician was right in that particular instance. Knowing the end result helps say so, but it doesn’t mean things were done inappropriately the first time.

Look at the TV commercials you see. Money falling in the background. A well dressed man telling you that if you’ve been injured you have a right to money. Can you honestly say that’s not a fishing scam to manipulate people into bringing ANY suit to your attention? That guy in the commercial isn’t looking out for patients.

I disagree with the statement that the “standard of care” is “set by physicians.” The standard of care is set by an expert who may be way off in left field and whose opinions may be completely opposite from mainstream medicine. Even if 50 other experts disagree with that expert, you can’t parade all the dissenters in front of the jury due to cost and due to plaintiff’s arguments that such evidence would be “cumulative.” You can’t tell me that plaintiffs attorneys don’t search these experts out. I could post the names of multiple “usual suspects” in emergency medicine.
Then, when medical societies attempt to sanction these rogues or doctors complain about them, plaintiffs’ attorneys accuse them of “witness tampering.”
Plaintiffs attorneys have a large incentive to pursue frivolous cases when those cases involve large potential damages. Even a 10% shot at a $10 million “bad baby” verdict (which would net the attorney $4 million plus) would be considered a good gamble for some. If a hospital is nervous enough about the potential for a huge verdict, it may settle the case rather than risk submitting the case to jurors who might choose a verdict simply on the basis of sympathy.

Right. When I was a resident at a large innercity hospital where the MD’s were largely shielded from lawsuits, we killed patients left and right – often intentionally just to test the system. What a shock to the system when I went to work as an attending at a private hosptial and I actually had to avoid such behaviour!

“Right. When I was a resident at a large innercity hospital where the MD’s were largely shielded from lawsuits, we killed patients left and right – often intentionally just to test the system. What a shock to the system when I went to work as an attending at a private hosptial and I actually had to avoid such behaviour! ”

This is one of the funniest posts ever – if you know any docs. They spend how many years of their life busting their arse, going in debt, missing sleep and family events, etc so they can someday save lives and help people, and then they are faced with extortionists called lawyers who try and convince everyone of what you just said.

Frankly, I dont think that particular “physicians will be sloppier” argument as that strong against tort reform. Nor is the claim the physicians will practice differently and less “defensively” if they do screw the patients with tort reform. Both arguments sound good but I don’t think the evidence is there-at least I haven’t seen it after 30 years of this “reform”.

There is plenty of evidence that docs will act differently in more favorable legal climate. Look at Canada. The odds of a settlement are 2-1 against the plaintiff. Judges have stricter criteria to prove the physician as the cause of the injury, much more than here in the US. And the single national malpractice insurance plan vigorously defends ALL claims. Also, any claims that do make it to settlement or even trial are compensated at much lower rates (for varied reason I’m sure Matt will elucidate painting lawyers as our saviors)
So, as a result, medicine can be practiced more clinically than relying on expensive tests. And, if you believe Michael Moore, Canadians are healthier for much less cost.

So yes, Matt, physicians will practice less defensively in a better legal climate. Any change in our health care system without a complete overhaul of the legal system, is doomed to fail. The tort “reforms” so far are not really reform at all, but window dressing. And the results you describe in the “30 years of this ‘reform’ ” are very predictable, because we haven’t had real reform yet.

Why would you pick a country with universal healthcare and attribute all differences to it’s legal system? That makes no sense. If it did make a difference here in the US we would see it in states like California which has three decades of tort reform with little to no discernible impact on physicians per capita or the cost of healthcare. Or any of a number of other states that have had this reform for over a decade.

The fact that you cite a foreign nation with an entirely different healthcare delivery system and legal system rather than similar states where your solutions have been tried for years is telling.

Try looking at it from another direction. Are you prepared to assert that no physician has ever engaged in “defensive medicine” and discovered something that was not apparent in the initial analysis and would not have been discovered without the “defensive medicine?”

I’m sure you’ll remind me that I don’t believe “defensive medicine” exists as a theoretically matter (because a doctor can’t fear liability without fearing an adverse medical outcome), but that’s a dodge. Your argument right now is that no doctor has EVER produced a superior result for a patient out of fear of liability.

You can’t have it both ways; either doctors are doing a CYA by over-testing people, and thus occasionally catching problems they overlooked, or they’re not.

Moreover, what social good is met by providing immunity to physicians? Sure, we can debate the contours of medical liability, but will our society be better off if the thousands injured every year by medical malpractice receive no compensation? Before answering, make sure you’ve got a good grasp of the Coase Theorem and how liability alone does not impose a cost on society, it merely shifts a cost from one party not at fault to the party at fault.

You are absolutely correct that defensive medicine “occasionally” results in a physician picking up a diagnosis that may have otherwise been missed. No argument there at all.

The issues I have with defensive medicine are:
#1 The amount of money that must be spent to catch those “occasional” diagnoses is way out of proportion to the benefit provided. EP Monthly published a “standard of care” scenario within the past year showing that the amount of money that must be spent to catch one single case of spontaneous carotid artery dissection probably exceeds $50 million. Look at all the health care that could be provided to indigent patients with that money. Preventative care. Immunizations. Dental care. Medications. Instead, the money is wasted on finding the needle in the haystack. You may argue that the money is worth it for the one patient in which the disease is caught. Ethically, I disagree. How many more lives could have been saved by using that money to prevent disease?
Your firm doesn’t take cases that it doesn’t think it can win. Should it be accused of malpractice if another firm ultimately accepts and wins the case? After all, you were wrong in your decisionmaking.
#2 Patients can be harmed by low yield testing. Radiation doses from heart scans, angiography, and CT scans are cumulative and can result in cancer later down the road. Dye loads may permanently damage a patient’s kidneys. False positive testing may result in unnecessary surgery or other procedures. No one discusses these issues.

Social good? Is there a greater social good in having less specialists willing to treat patients? We have to fly patients over a hundred miles to find a neurosurgeon willing to perform brain surgery on someone with a head bleed. There are several neurosurgeons closer, but all have dropped privileges for non-spinal surgery due to … too much liability. I could come up with more examples with a little research, but the bottom line is that limited immunity, over time, will increase the supply of physicians. It won’t happen immediately, but it will happen.

” How many more lives could have been saved by using that money to prevent disease?”

That’s a false question. I mean, if you believe that, why not apply it across the board to all healthcare costs. For example, why spend money caring for someone who has outlived their life expectancy when we can apply it to preventing heart disease for an example? Your question assumes that there is a finite pool of money for healthcare we’re all dipping in to. Right now, and maybe not for much longer, that is not the case.

If I pay for every test under the sun, and pay out of my pocket, that’s MY money to spend how I’d like. If I contract with my insurer to pay for those services, that’s OUR agreement. Really not your concern.

“Your firm doesn’t take cases that it doesn’t think it can win. Should it be accused of malpractice if another firm ultimately accepts and wins the case? After all, you were wrong in your decisionmaking.”

This statement reflects a misunderstanding of the elements of malpractice. The firm had no duty because it didn’t take the case. And, there are no damages. You have to have both.

“why not apply it across the board to all healthcare costs.”
I do. About 30% of our health care dollars go towards ‘futile’ end of life care. A premie infant who’s too small to live but the parents want everything done. A 100 year old great grandparent who’s neurologically devastated from multiple strokes and kidney failure and the family insists of putting her through surgery for a perforated bowel. No chance of survival, but we pump massive amounts of dollars into a few days worth of torture for these patients. When I lived in England, people were much more honest about death, medical limitations, and the expectation of a miracle.

Like it or not, healthcare is a limited resource. There is limited money, and even if there weren’t limited money, there is limited staff, rooms, equipment. Allocation and wise use of such resources is partly the responsibility of the physician, and efficiency of the system ought to be everyone’s goal. If I send you to CT just because you want it (and almost no one is paying out of their own pocket, so that argument is bunk), then when a trauma comes through my doors, he has to wait for you to finish your unneeded test. Many tests have real risks, such as significant radiation exposure. Maybe you want a CT scan, but if you end up getting cancer later on, I’m willing to bet you’ll blame me for ordering a dangerous, unnecessary test.

We are lucking in this country to have such things readily available, but that doesn’t mean physicians or patients should waste time and money ordering unneeded frivilous tests.

“Is there a greater social good in having less specialists willing to treat patients? We have to fly patients over a hundred miles to find a neurosurgeon willing to perform brain surgery on someone with a head bleed. There are several neurosurgeons closer, but all have dropped privileges for non-spinal surgery due to … too much liability. I could come up with more examples with a little research, but the bottom line is that limited immunity, over time, will increase the supply of physicians. It won’t happen immediately, but it will happen.”

It hasn’t happened after 30 years of “reform” that physicians said would have the same result. Why should we believe you now?

Tell you what, how many neurosurgeons will you guarantee per person if we give you immunity? And how long do we have to wait this time? Your promises have not been fulfilled in the past, so give us a guarantee. If it doesn’t happen, we’ll repeal it and give injured patients a fighting chance again, ok?

Matt
Simple argument… grant professional immunity and there will be less defensive medicine. If Canada had the same tort system as here, despite universal healthcare, Canadian physicians would practice just as defensively.
My contention is that the US has not had anything close to real “tort reform”, so the fact that “tort reform” states with no discernible impact on physicians per capita or the cost of healthcare is entirely predictable.

Igloo, I admire your honesty. You want to fully immunize physicians regardless of their actions and the resulting harm. Many physicians want it, but few are willing to say it. You don’t want to reform the system, you want to do away with it altogether for yourself and other physicians.

Yes, I want to do away with the current system, because it just is not working. If that involves immunity, then so be it. As WC is documenting, the legal system has become costly theater that occasionally arrives at a just conclusion. In the process lives are changed, occasionally destroyed, and vast amounts of money are spent and sometimes received.

Of course a patient maliciously harmed by a doctor, or lawyer, or judge or corporation deserves some form of compensation. The justice system just does not do this.

Before we need health reform, we need legal reform. Not just tort reform, but a full tear down and rebuild of the entire legal system. Once that is done, then we can rebuild the health system.

“Yes, I want to do away with the current system, because it just is not working.”

This is an interesting statement, or should I say incomplete. What do you want it to do exactly? And how would you go about it.

“Before we need health reform, we need legal reform. Not just tort reform, but a full tear down and rebuild of the entire legal system. Once that is done, then we can rebuild the health system.”

Also an interesting statement. Given that at its most optimistic estimate, using the highest numbers ever guessed at for “defensive medicine”, and assuming no benefit to the system for malpractice payments, the “cost: of the legal system is still barely 10% of healthcare dollars. It would seem there would be a lot that could be accomplished in the remaining 90% without messing with the foundation of American law.

As for completely tearing down our system, which is more directly accountable to us citizens than probably any in the world, I’d be interested in hearing your thoughts on what should be done.

I just want to say that I don’t think a reform like this will prevent our big work-up docs from doing big work-ups. They were never trained in emergency medicine and have lived in fear of a lawsuit for so long that it won’t change how they do anything. It’s doesn’t seem to be a super-conscious decision to do a big work-up to prevent a lawsuit, it’s just likely automatic at this point.

I agree to a point.
The inertia will have to change, but over time, especially if studies and/or guidelines are published documenting how docs can’t be sued for bad outcomes if the docs act reasonably, the change will occur.

Considering that we’ve had tort reform for decades, and it hasn’t changed anything in the states where we have it – healthcare isn’t cheaper, there aren’t more physicians per capita, etc. – it appears that perhaps there may be another reason for physicians doing what they call “defensive medicine”.

All legal immunities are lawless, including the Eleventh Amendment, and it offspring, Hans v Louisiana.

1) Torts can deter and improve all human activities. The sole justification for an immunity of the state is that the Sovereign speaks with the Voice of God. Not only a psychotic delusion, but also a violation of the Establishment Clause.

2) Torts liability shrinks an activity, immunity grows it. All self-dealt lawyer immunities are stealthy, unauthorized industrial policy beyond the competence of the court. The legislature should be the sole arbiter of immunity. Here are natural experiments in history, proving the point.

So the immunity of lawyers and judges has resulted in the explosive growth of this human activity. We are now over-run with this pestilential vermin, and all social and economic fields are suffering their toxic effects.

3) The Eleventh Amendment got passed after bond holders from another state sued a state to enforce the promise to repay. Its passage was shady. It caused an injustice, the theft of bond money from legitimate creditors. Then the Hans decision expanded the immunity to liability to the citizens inside the state. No legal justification exists. This was an arbitrary, wrongful expansion of immunization for state misconduct damaging the citizen.

Judges should be protected from frivolous and retaliatory claims. A certificate of merit from a judging expert should be required or a bond for all legal cost should be posted prior to allowing any case against a judge to go forward. These are all biased, incompetents because of their immunity. Either one believes in torts or one should immunize all other defendants, and shut their hypocritical lawyer mouths.

Matt: Punishment is the sole tool of the judge. Because it harms people in its correct, proper use, the rules of strict tort liability should apply to the judge’s decisions. If the defendant is found innocent by later testing, the judge should compensate the damaged defendant without any proof of misconduct. Mistakes of law are covered by reversal on appeal. The damages to defendants should be compensated by the judge, perhaps carrying a mandatory judge liability insurance. There is no logic that justifies the self-dealt immunities of incompetents. The Supreme Court has made this immunity absolute. An Amendment should be passed ending all immunities, including those of all governments, repealing the Eleventh Amendment and all its evil spawn.

They do, but they are rarely used in the context of tort claims. One or the other side always requests a jury. Often, the defense will if the plaintiff won’t.

People who are actually in court regularly don’t buy into the whole “jurors are a bunch of uneducated morons waiting to be led by unscrupulous plaintiff’s lawyers” belief that physicians have about people.

In fact, every trial training course involves reminding you that you better respect them.

Judges run the trial. They have the full responsibility for any unlawful harm from the trial. They have greater control over every aspect than employers have over employees. That includes the ability to end the wrongful claim at any point, and to overturn a jury verdict. Nothing happens at a trial not alloed by the judge.

“In our current system, if someone files a $3000 case against you, you have to determine whether it is worth your while to pay $20,000 in legal fees to prove you’re right or to just pay the damn $3000, lick your wounds, and move on with your life.”

If someone files a $3,000 case against you, it is most likely in small claims court, where an attorney is not required. What attorneys are charging $20K to defend a case of that size?

” And if the “loser pays” system is so bad, why do most other countries keep it around instead of switching over to an “Americanized” system of tort law?”

Again, you are speaking about subjects which you know little. One, almost every state already has loser pays. Two, it doesn’t work in other countries like you think it does. Here is an article that will educate you a little – if you’re open to it, that is:

“Most data now indicates that CP does not result from intrapartum care, yet OBs are sued quite frequently over this outcome. ”

The studies generally say that it’s rare that a cause can be determined, but it does not say that it’s impossible for malpractice to cause CP. You say OBs are sued “quite frequently”? How often? In 10% of the CP cases? 3%? 1%? No one knows. It may be even less than you’d expect.

“Would you say that our disagreement revolves around the definition of negligence? Few would argue that bad physicians who are truly negligent shouldn’t be sued.”

Actually, I think our disagreement stems from your second sentence. You are not a bad physician if you are negligent one time. No more than you are a bad driver if in a lifetime of driving you cause one wreck. You made a mistake, that’s all. However, simply because you’re a good person and a generally good physician or driver doesn’t mean you don’t have to pay for your mistakes.

” someone is always willing to point the finger at the physicians.”

This is not really true. Do you really think that most all malpractice results in a claim? Or even the majority of it?

” Can you honestly say that’s not a fishing scam to manipulate people into bringing ANY suit to your attention? That guy in the commercial isn’t looking out for patients.”

It’s not his job to look out for patients, or healthcare in general. It’s his obligation to look out for his clients. Now, do I like TV advertising? No, no more than you like Dr. 90210. Is he looking to have people call him with cases? Absolutely – but most med mal plaintiff’s lawyers will tell you they pass on most of the cases brought to them. It is their money and time on the line, and it’s simply not good business to waste either on questionable cases.

And Mike, I think you’re half right about it being a limited resource. It is a limited resource if the government doesn’t fund the cost through debt financing and is honest about saying we have finite dollars for this. However, telling seniors, the nation’s largest and wealthiest voting bloc, that they’re getting limited, is politically unpalatable. So as long as the Treasury will print dollars, that’s not going to happen.

It still won’t be limited for those with means to go out of the government system, though.